A key tenet of public international law is that states, regardless of their size or wealth, are equal as a matter of law within the international community. This makes the difficulties that claiming entities experience in achieving statehood understandable, since the benefits of being recognized as a state are of such gravity.
The Montevideo factors – the most universally accepted set of standards for determining statehood claims and status – establish four factors that must be met in order to achieve statehood in the eyes of the international community. These factors are: 1) a determined area, 2) a settled population, 3) an effective government, and 4) the capacity to enter into international relationships. On their face, these requirements seem quite simple, however in application they are anything but. Ultimately, it can be argued that the most dominant factor is international capacity since it is only through the collective will and recognition of the international community that a claiming entity will be recognized and legitimated as a state.
In this environment, it is easy to assume that, once the coveted status of statehood is granted, essential protections such as respect for state boundaries and the non-intervention in the affairs of a state would be accorded to the new state. However, based on the events of recent weeks and months in South Sudan, this assumption appears to be painfully wrong.
South Sudan is the world’s newest state, with an official date of independence from Sudan on July 9, 2011. Achievement of independence from Sudan came at the cost of millions of lives during a series of civil wars and after the people of South Sudan voted for independence in 2011 by a nearly unanimous margin. Several days after this declaration of independence, the world community recognized the statehood of South Sudan by granting it admission to the United Nations on July 14, 2011.
Since that time, South Sudan (Prior IntLawGrrls posts on this issue here) and Sudan have continued to skirmish across their respective borders, with Sudan being reluctant to lose the oil-rich territory within South Sudan and South Sudan asserting its power by pursuing the interests of the Sudanese government along the border. Indeed, over the past few days it appears that this fighting has worsened. In the process, civilians have lost their lives and livelihoods and the stability of both regimes has been tested.
And yet, for the majority of these hostilities the world community has said very little. In recent days there have been statements of condemnation from key states, including the United States, and condemnation by the United Nations and the African Union. However little else has been done to assist a state that is recognized as a legitimate actor in the international system or, more importantly, to assist those living in South Sudan to receive protections from the state and guarantees of sovereign recognition and territorial integrity from the international community. This is a vivid contrast to other newly recognized states, such as Kosovo, which is still under international protection. In the example of Kosovo (Prior IntLawGrrls posts on this issue here), threats to the border by either Serbia or Kosovo have been met with a far more immediate and vocal international response, due no doubt at least in part to a desire to stop the potential for the outbreak of more violence. However, in South Sudan, where that potential for violence has already been realized, it is troubling that attention and attempts to defend the rights of the state as just that, a state, have been lacking on the part of the same international community that gave legitimacy to South Sudan to begin with.